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B-191901, SEP 27, 1978

B-191901 Sep 27, 1978
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AGENCY'S UNREBUTTED CONTENTION THAT ORAL NOTICE WAS GIVEN IS SUFFICIENT BASIS TO CONCLUDE THAT PROTEST FILED MORE THAN 10 DAYS THEREAFTER IS UNTIMELY UNDER SEC. 20.2 (B)(2) OF GAO'S BID PROTEST PROCEDURES. 2. WHERE PROTEST IS FILED INITIALLY WITH PROCURING ACTIVITY. SUBSEQUENT PROTEST TO GAO NOT FILED WITHIN 10 DAYS OF PROTESTER'S NOTICE OF INITIAL ADVERSE AGENCY ACTION (REFUSAL TO CONSIDER PROTEST AND PROCEEDING WITH PROCUREMENT) IS UNTIMELY. WAS A PROTEST. IT WAS NOT ANSWERED. DGSC ALSO STATES THAT A FORM (DGSC FL13) NOTIFYING MARS OF ITS UNSUCESSFUL OFFER WAS MAILED ON MARCH 24. THAT A TELEPHONE CONVERSATION NOTIFYING MARS OF THE AWARD TO MCDERMOTT OF THE UNRESTRICTED PORTION OF THE PROCUREMENT WAS MADE ON MARCH 21.

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B-191901, SEP 27, 1978

DIGEST: 1. WHILE PROTESTER DENIES RECEIPT OF WRITTEN NOTICE OF AWARD TO OTHER BIDDER, AGENCY'S UNREBUTTED CONTENTION THAT ORAL NOTICE WAS GIVEN IS SUFFICIENT BASIS TO CONCLUDE THAT PROTEST FILED MORE THAN 10 DAYS THEREAFTER IS UNTIMELY UNDER SEC. 20.2 (B)(2) OF GAO'S BID PROTEST PROCEDURES. 2. WHERE PROTEST IS FILED INITIALLY WITH PROCURING ACTIVITY, SUBSEQUENT PROTEST TO GAO NOT FILED WITHIN 10 DAYS OF PROTESTER'S NOTICE OF INITIAL ADVERSE AGENCY ACTION (REFUSAL TO CONSIDER PROTEST AND PROCEEDING WITH PROCUREMENT) IS UNTIMELY.

MARS SIGNAL LIGHT COMPANY:

BY LETTER DATED MAY 2, 1978, RECEIVED IN OUR OFFICE MAY 10, 1978, MARS SIGNAL LIGHT COMPANY (MARS) PROTESTED THE AWARD OF A CONTRACT FOR VEHICULAR WARNING LIGHTS TO JULIAN A. MCDERMOTT CORPORATION (MCDERMOTT) UNDER INVITATION FOR BIDS (IFB) DLA-400-78-B-0581, A COMBINED SMALL BUSINESS-LABOR SURPLUS AREA SET-ASIDE, ISSUED BY THE DEFENSE GENERAL, SUPPLY CENTER (DGSC).

MARS STATES IN ITS PROTEST LETTER THAT DGSC NEVER NOTIFIED IT THAT AN AWARD HAD BEEN MADE ON MARCH 21, 1978. INSTEAD, MARS STATES THAT IT FIRST LEARNED OF THE AWARD ON APRIL 27, 1978, WHEN THE CONTRACTING OFFICER MENTIONED THE AWARD TO A MARS CONSULTANT IN A TELEPHONE CONVERSATION. ADDITIONALLY, MARS STATES THAT ITS LETTER TO DGSC OF FEBRUARY 22, 1978, AS SUPPLEMENTED BY LETTER DATED MARCH 3, 1978, WAS A PROTEST. THAT LETTER REQUESTED THAT NO CONTRACT BE AWARDED UNDER THE INSTANT IFB.

IN REBUTTAL, DGSC STATES THAT IT DID NOT CONSIDER MARS' LETTER OF FEBRUARY 22 A PROTEST AND, CONSEQUENTLY, IT WAS NOT ANSWERED. DGSC ALSO STATES THAT A FORM (DGSC FL13) NOTIFYING MARS OF ITS UNSUCESSFUL OFFER WAS MAILED ON MARCH 24, 1978, AND THAT A TELEPHONE CONVERSATION NOTIFYING MARS OF THE AWARD TO MCDERMOTT OF THE UNRESTRICTED PORTION OF THE PROCUREMENT WAS MADE ON MARCH 21, 1978. MARS WAS ALSO TOLD ORALLY THAT MCDERMOTT WAS BEING GIVEN THE FIRST OPPORTUNITY TO MAKE AN OFFER WITH RESPECT TO THE LABOR SET-ASIDE PORTION OF THE PROCUREMENT. MARS DENIES RECEIPT OF THE LETTER, BUT DOES NOT DENY RECEIPT OF THE TELEPHONE CALL OF MARCH 21. DGSC CONTENDS THAT MARS' PROTEST FILED IN OUR OFFICE ON MAY 10, 1978, IS UNTIMELY UNDER 4 C.F.R. SEC. 20.2(B)(2) (1978) BECAUSE MARS WAS NOTIFIED OF THE AWARDS ON MARCH 21, 1978.

WHILE MARS HAS DENIED RECEIPT OF THE MARCH 24 WRITTEN NOTICE OF AWARD, IT HAS NOT DENIED THE FACT THAT IT WAS NOTIFIED OF THE AWARD AND PROPOSED AWARD BY THE MARCH 21 TELEPHONE CALL. IN THIS CONNECTION, ORAL ADVICE IS SUFFICIENT NOTIFICATION OF THE BASIS FOR A PROTEST. THE PUBLIC RESEARCH INSTITUTE OF THE CENTER FOR NAVAL ANALYSES OF THE UNIVERSITY OF ROCHESTER, B-187639, AUGUST 15, 1977, 77-2 CPD 116. ACCORDINGLY, MARCH 21 IS THE DATE BY WHICH THE TIMELINESS OF MARS' PROTEST IS TO BE MEASURED.

OUR BID PROTEST PROCEDURES, 4 C.F.R. SEC. 20.2(B)(2) (1978), PROVIDE IN PERTINENT PART:

"*** 'BID PROTESTS SHALL BE FILED NOT LATER THAN 10 DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER."

SINCE MARS RECEIVED NOTIFICATION OF THE AWARD AND PROPOSED AWARD ON MARCH 21, 1978, ITS PROTEST FILED HERE ON MAY 10, 1978, IS CLEARLY UNTIMELY UNDER THE QUOTED SECTION.

EVEN IF MARS' LETTER OF FEBRUARY 22 TO THE AGENCY IS CONSIDERED A PROTEST, ITS PROTEST HERE IS UNTIMELY. 4 C.F.R. SEC. 20.2(A) REQUIRES THAT MATTERS PROTESTED INITIALLY TO THE PROCURING ACTIVITY MUST BE PROTESTED TO OUR OFFICE WITHIN 10 DAYS OF THE PROTESTER'S RECEIPT OF ACTUAL OR CONSTRUCTIVE NOTICE OF THE AGENCY'S "INITIAL ADVERSE ACTION" ON THE PROTEST. HERE, DGSC'S GOING AHEAD WITH THE PROCUREMENT, DESPITE ITS RECEIPT OF MARS' LETTER, CONSTITUTED INITIAL ADVERSE ACTION. CARRIER CORPORATION, B-189687, AUGUST 16, 1977, 77-2 CPD 123. THEREFORE, SINCE

MARS DID NOT PROTEST THE AWARD UNTIL MAY 10, ITS PROTEST IS UNTIMELY AND WILL NOT BE CONSIDERED ON THE MERITS.

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